CORE CRIMINAL LAW SUBJECTS: Crimes: Article 134 -- Reckless Endangerment (para 100a, MCM)

2016 (October Term)

United States v. Herrmann, 76 M.J. 304 (the third element of the offense of reckless endangerment provides that the conduct at issue was likely to produce death or grievous bodily harm to another person; the concept of what constitutes likely must be applied consistently from one UCMJ offense to another; and the question of whether certain conduct is likely to result in death or grievous bodily harm must be measured by two factors: one, the risk that harm will actually occur; and two, the magnitude of that harm if it does occur).

(a determination of whether death or grievous bodily harm is a likely result of an accused’s conduct under the provisions of Article 134, UCMJ, is based on the trier of facts’s commonsense, everyday understanding of that term as applied to the totality of the circumstances; thus, regarding the offense of reckless endangerment, when the natural or probable consequence of particular conduct would be death or grievous bodily harm, it may be inferred that the conduct is likely to produce that result).

(in this case, the evidence was legally sufficient to find that appellant committed the offense of reckless endangerment by falsely attesting that he had inspected some reserve parachutes and they were airworthy, where (1) there was little doubt that if one of the uninspected parachutes had unintentionally deployed as a jumper prepared to exit an aircraft, or if one of those parachutes had failed to deploy when a jumper required one due to a malfunction with the main parachute, death or grievous bodily harm would almost certainly have been the result, and (2) it was likely that that the harm would actually occur where, examining the evidence in the light most favorable to the government, a rational finder of fact could have found the following points beyond a reasonable doubt: (a) the pencil-packed reserve parachutes were placed in the ready-for-issue cage, and thus were subject to distribution to paratroopers during the next 365-day cycle, (b) these parachutes were no longer airworthy because of significant safety deficiencies such as missing ejector springs, knotted and stretched out closing loops, and degraded cotton ties, and (c) the natural and probable consequence of these safety deficiencies was an unintentional deployment of the pencil-packed parachute prior to a jump, or a malfunction of such a parachute in the course of a jump, leading to the death or grievous bodily harm of the parachutist or other soldiers).  

2008 (September Term)

United States v. Thompson, 67 M.J. 106 (after finding the evidence of kidnapping factually and legally insufficient because the detention was de minimis, the CCA improperly substituted a conviction to reckless endangerment as an offense closely related to the offense of kidnapping, where a comparison of the elements of the two offenses revealed that a conviction for reckless endangerment required proof of elements that were not included in a specification for kidnapping, and reckless endangerment was not an offense necessarily included in the offense of kidnapping). 

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